Terms and Conditions

1. INFORMATION ABOUT US

KiwiMarket (KM) agrees to deliver the digital file(s) to the Licensee (“You”) on the condition that You accept the following terms of use (“Agreement”). By downloading the digital file, You are accepting and agreeing to the terms and conditions of this Agreement which constitute a legal agreement between You and the KM. If You do not agree with the terms of this Agreement, You should not download the digital file. Once the digital file is downloaded and received by You, no refunds or exchanges for the digital download will be given, except as may be necessitated by a technical issue.

2. HOW THESE TERMS APPLY TO THE SALE OF PRODUCTS

2.1
These Digital Product terms and conditions of sale (together with any relevant documents referred to in them (including the Website terms of use)) set out the terms on which we supply any of the following products via our site to you:

2.2
Each time you purchase Digital Products through this site you will be required to click the “Proceed Directly to Checkout” button to complete the order, which is preceeded by the instruction “All purchases are subject to our license agreement & terms and conditions”. By clicking the “Proceed to Checkout” button and/or by using this site to purchase Digital Products you are accepting both this license agreement and terms and conditions of sale and if relevant any product specific terms. Any terms which you seek to impose in respect of your purchase of Digital Products through this site will not form part of any contract between us. Please read these terms and conditions carefully before ordering any of the Products from our site. If you have any queries on these terms please contact us before placing any order.

2.3
To the extent that there is any conflict or inconsistency between the terms and conditions on this site and the Privacy Policy in respect of your use of and/or order for Digital Products the following order of precedence will apply:

Digital Product terms and conditions of sale;

Website terms of use;

Privacy Policy.

2.4
We recommend you review these terms and conditions each time you purchase Digital Products and print a copy of these terms and conditions for your future reference.

3. ABOUT YOU

3.1
By placing an order for Digital Products through our site, you warrant that:

3.1.1
You are legally capable of entering into binding contracts;

3.1.2
You are at least 18 years old;

3.1.3
You will not copy, distribute or share the Digital Products other than as allowed under these terms of sale and the product license agreement.

3.2
By placing an order for Digital Products you agree that we may store, process and use personal data collected from you for the purposes of processing/fulfilling your order. We work with third parties that help us provide the Digital Products to you including card payment and collection companies and they will also have access to your personal data to the extent necessary to help us process/fulfil your order. For further information about how we may store, process and use your personal data please refer to our Privacy Policy.

4. REGISTRATION

4.1
You do need to register with the site to place an order for Digital Products, you will be required to provide us with certain information including certain personal and payment/billing details so that we can process your order.

4.2
You agree to provide us with truthful, complete and accurate details. You agree to provide us with your details only. You should keep any account details (including any password) safe and should not share or disclose them to anyone. Please notify us immediately if you suspect your account details have been compromised. You are responsible for all orders placed/activity undertaken using your account details.

5. DIGITAL PRODUCTS

5.1
We provide the digital service on this site which allows you to access and purchase downloads of Digital Products (including information related to these products and associated artwork).

5.2
All Digital Products available through this site are owned or controlled by us are protected by intellectual property rights. This includes the design, compilation, and look and feel of the KiwiMarket web site, and copyright, trademarks, designs and other intellectual property. We own all the trademarks, logos, service marks and trade names (unless otherwise stated and excluding these things owned by others).

5.3
Any use of Digital Products purchased through this site are subject to the product license agreement. Upon payment of the price of the Digital Product we grant you a non exclusive, non-transferable single-user or multi-user license to use the Digital Product with these terms of sale.

5.4
You agree that you will not redistribute, transmit, assign, sell, broadcast, rent, share, lend, modify, adapt, edit, sub-license or transfer any Digital Products available through this site (whether the same are available as downloads) in any manner other than explicitly described in the product license agreement. Nothing in these terms of sale grants to you any rights other than those expressly set out herein. These terms do not grant to you any rights in relation to the synchronisation, public performance, promotional use, commercial sale, resale, reproduction, distribution or commercial exploitation of any Digital Product.

5.5
We will be entitled to obtain injunctive relief against you, in addition to all other remedies that we may have, to enforce these terms of sale and to prevent your unauthorised use of this site and/or Digital Products.

5.6
Downloads of Digital Products are capable of being downloaded to and stored on the hard drive of your computer or mobile devices and then exported, burned or copied. You must adhere to any and all usage restrictions that apply to the Digital Product as set out in the product license agreement.

5.7
Our Digital Products may carry a digital watermark that allows us to identify the origin of the Digital Product and track any subsequent unauthorised transfer. You agree to not attempt to remove the watermark or circumvent the security technology in any way.

6. PLACING AN ORDER AND HOW THE CONTRACT IS FORMED BETWEEN YOU AND US

6.1
After placing an order for a Digital Product via our site, you will receive an on screen message and e-mail from us setting out the details of your order and acknowledging that we have received your order.

6.2
The contract for the purchase of any Digital Product will be between You and Us and will only be formed when we make the Digital Product available for download and we have received payment in full for the Digital Product. Until we make the Digital Product available for download and receive payment in full there is no contract between you and us for the Digital Products. We reserve the right, in our sole discretion to reject any orders we receive.

7. AVAILABILITY AND DELIVERY

7.1
All Digital Products featured on our site are subject to availability. We reserve the right to change or remove a Digital Product or other content on the site at any time without notice or liability to You. Reasons might include quality assurance, if we receive a valid copyright take-down notice, if we think that the use of your content is unauthorised, misleading, incorrect, offensive, or in breach of anyone else’s rights, or if we think that any content might result in liability to Us or anyone else.

8. PRICE AND PAYMENT FLOW

8.0
We will provide a download link to your purchased Digital Product within 24 hours of payment being received.

8.1
We shall determine in our discretion from time to time whether and which Digital Products are to be made available free of charge, on request of the respective author or in return for some other consideration.

8.2
The price of any Digital Product will be as quoted on this site at the then current time, except in the case of obvious error. We will not accept any offers for Digital Product other than at the then current price. Digital Product may be purchased individually, or as a bundle. We reserve the right to make certain Digital Products available only as part of a larger product.

8.3
We use our best efforts to ensure the prices of Digital Products displayed on our site are correct. However, our site contains a number of Digital Products and it is always possible that, despite our best efforts, some of the Digital Products listed on our site may be incorrectly priced. If a Digital Product’s correct price is higher than the price stated on our site at the time you placed your order and we have not yet taken payment and made the Digital Product available for download we will normally, at our discretion, either contact you for instructions before making the Digital Product available for download (ie to confirm your order and that you wish to proceed at the correct price), or reject your order and notify you of such rejection.

8.4
We are under no obligation to provide the Digital Product to you at the incorrect (lower) price if the pricing error is obvious and unmistakeable and could have reasonably been recognised by you as a pricing mistake. We reserve the right to withdraw from any contract for Digital Products in the case of obvious and unmistakable pricing errors.

8.5
Prices for Digital Products are liable to change at any time, but these changes will not affect orders in respect of which we have already taken payment and made the download available.

8.6
Note that if you are downloading the digital products to a mobile device, some network/service providers may charge you an additional amount for this service. We recommend you contact your network/service provider to understand the nature and extent of any additional charges before selecting the download to mobile option. Note that overseas roaming charges may also apply.

8.7
Payment for all Digital Products must be by credit card, Stripe or Paypal. We accept the credit cards displayed on the payment page of our web site.

8.8
By providing the details of a credit or debit card to be billed or payment account to be debited for payment of the price due, you confirm that you are authorised to purchase the Digital Products and that you are the holder of the relevant credit or debit card or of the relevant payment account or are expressly authorised to use such. All card payments and card holder details may be subject to validation checks by us and the card issuer.

8.9
All credit/debit card holders are subject to validation checks and authorisation by the card issuer. If the issuer of your card refuses to authorise payment we will not accept your order and we will not be liable for any delay or non-delivery and we are not obliged to inform you of the reason for the refusal. We are not responsible for your card issuer or bank charging you as a result of our processing of your credit/debit card payment in accordance with your order. Should there be a problem with your payment we will contact you to discuss the next steps.

9. CANCELLATIONS AND RETURNS

9.1
You may not cancel an order by you for any download of a Digital Product once it has been made available for download by you. Each purchase of a download shall be deemed a final, non-exchangeable, non-refundable sale.

9.2
We take great care in providing our Digital Products. In the unlikely event of faults with, or damage to, the Digital Products or if you have received an faulty or incomplete Digital Product please contact us through our contact form. We will replace any such faulty or damaged Digital Product if possible or if there are continuing issues with the Digital Product we may issue a refund. You must notify us within a reasonable period of time of download of the Digital Product. If you fail to notify us within a reasonable time, we will have no liability to you.

10. TERMINATION OF YOUR ACCOUNT

10.1
If you are in breach of, or we suspect you are in breach of, these Digital Product Terms of Sale then we may take any/all of the following actions:

Issue a warning to you;

Immediate, temporary or permanent withdrawal of your access to your account and/or the site however you will remain responsible for all outstanding amounts on your account;

Legal action against you;

Disclosure of information to law enforcement authorities as we reasonably feel is necessary.

The responses described above are not limited and we may take any action we reasonably deem appropriate.

11. OUR LIABILITY TO YOU

PLEASE READ THIS SECTION CAREFULLY AS IT SETS OUT THE LIMITATIONS OF OUR LIABILITY TO YOU

11.1
You agree you will have no claim against us, in respect of any decision to remove Digital Product from this site or any decision to suspend or terminate your access to this site or to Digital Products (including by way of purchase) through the site.

11.2
We warrant to you that any Digital Product purchased from us through our site is of satisfactory quality and reasonably fit for the purpose for which products of the same kind are commonly supplied. We do not make any other promises or warranties about the Digital Products. You agree that use of this site to access or purchase Digital Products is at your sole risk.

11.3
If You or We are in breach of the contract for the Digital Product, neither of Us will be responsible for any losses that the other suffers as a result, except for those losses which are a foreseeable consequence of the breach. Losses are foreseeable where they could be contemplated by you and us at the time your order is accepted by us.

11.4
Our liability for losses you suffer as a result of us breaking a contract for a Digital Product(s) is strictly limited to the purchase price of the relevant Digital Product(s) affected.

11.5
We are not responsible for losses which happen as a side effect of the main loss or damage and which are not foreseeable by you and us including but not limited to:

11.5.1
Third party loss;

11.5.2
Loss of income or revenue;

11.5.3
Loss of business;

11.5.4
Loss of profits or contracts;

11.5.5
Loss of anticipated savings;

11.5.6
Loss of, damage to or corruption of data;

11.5.7
Loss of opportunity or goodwill;

11.5.8
Indirect or consequential loss of any kind; however arising and whether caused by tort (including negligence), breach of contract or otherwise.

11.6
This section does not exclude or limit in any way our liability:

11.6.1
For death or personal injury caused by our negligence;

11.6.2
For fraud or fraudulent misrepresentation;

11.6.3
For any deliberate breaches of these terms by us that would entitle you to terminate the contract between us relating to the Digital Products; or

11.6.4
For any matter for which we cannot exclude, or limit our liability under applicable law.

12. WRITTEN COMMUNICATION

Applicable laws require that some of the information or communications we send to you should be in writing. When using our site, you accept that communication with us will be mainly electronic. We will contact you by e-mail or provide you with information by posting notices on our site. For contractual purposes, you agree to this electronic means of communication and you acknowledge that all contracts, notices, information and other communications that we provide to you electronically comply with any legal requirement that such communications be in writing.

13. TRANSFER OF RIGHTS AND OBLIGATIONS

Neither you nor we may transfer, assign, charge or otherwise dispose of a contract for Digital Products, or any rights or obligations arising under it, without the other’s prior written consent. You agree however that we may sub-contract our obligations (for example contracting with a third party company to deliver the Digital Product) provided that we remain responsible to you for the performance of the contract.

14. EVENTS OUTSIDE OUR CONTROL

14.1
We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under a contract for a Digital Product that is caused by events outside our reasonable control (Force Majeure Event).

14.2
A Force Majeure Event includes any act, event, non-happening, omission or accident beyond our reasonable control and includes in particular (without limitation) strikes, lock-outs or other industrial action, civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war, fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster, impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport, impossibility of the use of public or private telecommunications networks and/or the acts, decrees, legislation, regulations or restrictions of any government.

14.3
Our performance under any contract will be suspended for the period that the Force Majeure Event continues, and we will have an extension of time for performance the same as the duration of that period. We will use our reasonable endeavours to bring the Force Majeure Event to a close or to find a solution by which our obligations relating to the Digital Products may be performed despite the Force Majeure Event.

15. WAIVER

15.1
If we fail, at any time during the term of a contract for a Digital Product, to insist upon strict performance of any of your obligations under the contract or any of these terms and conditions, or if we fail to exercise any of the rights or remedies which we are entitled to under the contract relating to the Digital Products, this shall not constitute a waiver of such rights or remedies and shall not relieve you from compliance with such obligations.

15.2
A waiver by us of any default shall not constitute a waiver of any subsequent default.

15.3
No waiver by us of any of these terms and conditions shall be effective unless it is expressly stated to be a waiver and is communicated to you in writing in accordance with section 14 above.

16. SEVERABILITY AND THIRD PARTY RIGHTS

16.1
If any of these terms or any provisions of a contract for a Digital Product are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term or provision will to that extent be removed from the remaining terms and provisions which will continue to be valid to the fullest extent permitted by law.

16.2
A person who is not a party to these terms of sale has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of these terms but this section does not affect a right or remedy of a third party which exists or is available apart from that Act.

17. ENTIRE AGREEMENT

We intend to rely upon these terms and conditions of sale and any document expressly referred to in them in relation to the subject matter of any contract relating to the Digital Products. If you are uncertain about your rights or think there is a mistake or that the terms are not complete and accurate or do not reflect any conversation with our customer services representatives, please contact us before placing an order in order to discuss your query/concern as we only accept responsibility for statements made in writing. In that way, we can avoid any problems surrounding what we and you are expected to do in relation to the contract for the Digital Product.

18. OUR RIGHT TO VARY THESE TERMS AND CONDITIONS

18.1
We have the right to revise and amend these terms and conditions of sale from time to time including to reflect changes affecting our business, changes in technology, changes in licensing arrangements, changes in payment methods, changes in relevant laws and regulatory requirements and changes in our site’s capabilities.

18.2
You will be subject to the policies and terms and conditions of sale in force at the time that you order Digital Products from us, unless any change to those policies or these terms is required to be made by law or governmental authority (in which case it will apply to orders previously placed by you), or if we give you reasonable notice of the change to those policies or these terms and conditions of sale before we confirm your order (in which case we have the right to assume that you have accepted the change to the terms and conditions, unless you notify us to the contrary within seven working days of receipt by you of the Digital Products or our entering into the contract for the Digital Products (as applicable)).

19. LAW AND JURISDICTION

Contracts for the purchase of Digital Products through our site and any dispute or claim arising out of or in connection with them or their subject matter or formation (including non-contractual disputes or claims) will be governed by all applicable United States and local laws and regulation. Any dispute or claim arising out of or in connection with such contracts or their formation (including non-contractual disputes or claims) shall be subject to the non-exclusive jurisdiction of the courts of the United States.

20. QUESTIONS OR COMPLAINTS?

If you have any queries at all regarding this site, the products featured on the site or any of the terms, please do not hesitate to contact us through our contact form, and we will be more than happy to assist you.